04 August 2010

I am going to take some quotes from a WSJ article of a few weeks ago, featuring law professor Randy Barnett. Barnett is a libertarian, and has a dramatically different view of how the Constitution should be interpreted:

Since the New Deal, Supreme Court justices have generally assumed a law is constitutional and overruled it only when it infringes on an individual right that is enumerated in the Constitution (free speech) or not (privacy). "If you're talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable," Mr. Barnett says.Instead, Mr. Barnett would have the court adopt a "presumption of liberty," placing the burden on the government to show that a law has a clear basis inCongress's constitutional powers. "The easiest way to explain it is, it would basically apply to all liberty the same basic protection we now apply to speech," he says.

He is quick to say that this is not usually how cases are decided, and does not expect the Supreme Court to treat Obamacare this way. This is a long quote, but worth your time:

Mr. Barnett's own view of the Commerce Clause is extremely narrow. If he had his way, ObamaCare would be struck down on the ground that Congress has no authority to regulate the insurance business. When the Constitution was written, Mr. Barnett says, commerce was understood to mean "trade in things—goods. . . . The Commerce Clause was really put there, essentially, to create a free-trade zone for the United States," not to give Congress power over all economic activity. "Not only was insurance not thought to be a part of the original meaning; in fact, it was held by the Supreme Court for 100 years that it was not something within the commerce power to reach."Today, however, Mr. Barnett acknowledges that is a losing argument. The court reversed itself in the 1944 case of U.S. v. South-Eastern Underwriters, holding that the Commerce Clause does authorize federal regulation of the insurance business.So would "any constitutional law professor" be right to scoff at the case against ObamaCare? Not according to this law professor. "The challenges to ObamaCare are serious legal challenges within the existing doctrinal framework," Mr. Barnett says. "They are not an attempt to restore the lost Constitution."That's why the "individual mandate"—the requirement that all Americans purchase medical insurance or pay a fine—has been the focus of the lawsuits by state attorneys general seeking to overturn ObamaCare. (Mr. Barnett wrote a friend-of-the-court brief with the Cato Institute, a libertarian think tank, in support of the Virginia attorney general's lawsuit.)Such a mandate is unprecedented: "This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company," Mr. Barnett notes. "As a judicial matter, it's also unprecedented. There's never been a court case which said Congress can do this." That doesn't establish that Congress can't do it, but the high court could reach that conclusion without undoing existing law.

Enough with the legal aspects- why do people have a visceral and negative reaction?

"What is the individual mandate?" Mr. Barnett says. "I'll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn't there a rule of law preventing that? Because it's never been done before. What's bothering people about the mandate? This fact. It's intuitive to them. People don't even know how to explain it, but there's something different about this, because it's a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That's all we commandeer the people to do. This is a new kind of commandeering, and it's offensive to a lot of people."